(Vanshika M. Shroff and Krishi R. Shah are 4th Year students of Pravin Gandhi College of Law, Mumbai.)
Featured painting – ‘The Crisis’ by Sabin Balasa
India is the second most affected country by the novel Coronavirus (‘COVID-19’). The advent of the pandemic has caused an exponential rise in cases in the country. COVID-19 was declared as a ‘notified disaster’ under the Disaster Management Act, 2005 (‘DM Act’) allowing the Central Government to deal with the outbreak by laying down plans and guidelines to ensure an effective response. After imposing a series of strict lock downs for about three months, the government began unlocking the country in June. However, the unlocking process proved to have detrimental effects as cases multiplied at an expedient rate. The spiraling situation is an outright reflection of the inefficiency on part of the constitutional machinery to take an instantaneous action in disaster situations.
The Indian Constitution bestows upon the State the paramount duty of safeguarding its citizens and protecting their rights. It is this protective measure to which the social welfare state is committed.[i] This commitment finds its basis in the coalescence of several political and legal theories, one of which is the Doctrine of Parens Patriae (‘the Doctrine’).
This blog highlights the applicability of the Doctrine in unprecedented times like the current pandemic. In most events of catastrophes, the State has been able to expediently rescue victims owing to proper planning and anticipation. While most calamities affect a particular region or expanse of the State, the virus has spread across the nation becoming one of the most challenging disasters faced by India. The blog further elucidates how it is imperative that the State, as the supreme protector of its people, execute its functions diligently in order to safeguard their best interests.
APPLICATION OF THE DOCTRINE IN THE INDIAN CONTEXT
Parens Patriae is Latin for ‘parent of the country’. The Doctrine originated in England from the common law concept of the royal prerogative. Traditionally, it obligated the Crown to discharge its sovereign function as the guardian of persons under disability. Today, this Doctrine has become an apparatus through which a welfare state protects the well-being of its citizens when no citizen has the standing to sue.
The Indian Constitution mandates that the State must assume responsibility to protect the human rights of disaster victims. The Supreme Court has held through a plethora of judgments that the Preamble of the Constitution read with the Directive Principles in Articles 38, 39 and 39-A endow upon the State the responsibility to do so. Hence, this Doctrine becomes an integral element of state responsibility in the Indian scenario.
The Doctrine’s application has been expanded to include persons who are not non sui juris[ii] in the strict sense. The Supreme Court has recognised in the case of Charan Lal Sahu, that, “…the jurisdiction of the State’s power cannot be circumscribed by the limitations of the traditional concept of Parens Patriae. Jurisprudentially, it could be utilised to suit or alter or adapt itself in the changed circumstances.” Therefore, the scope of the Doctrine has been subject to judicial intervention over the years and has been extended to victims of disasters like in the Gujarat Earthquake case[iii] and the Bhopal Gas Tragedy case.[iv]
ADMINISTRATIVE LAXITY DURING THE PANDEMIC
The capricious emergence of COVID-19 has had a perturbing impact on the State. The unlocking process was initiated by the government to restart the plummeting economy in the wake of this pandemic. This approach adopted by the government throughout this pandemic has been inconsistent with three major factors, namely, WHO guidelines[v], provisions of the DM Act and the Constitution. The Indian healthcare system has been overburdened and the economy has suffered incalculable damages as an aftermath of the outbreak. This arduous situation has drained the country’s ammunition and immunity, rendering even multinational corporations and non-state actors as powerless. However, it is the citizens who have been impacted the most due to these ramifications and therefore, it is indispensable to determine the fate of the citizenry by assuming authority for their safety and welfare.
The functions of a State, governed by the Constitution and Rule of Law, are to take necessary measures, as parent and guardian, to support the casualty in a state of calamity. This right to rescue, rehabilitate and relief is guaranteed under Article 21 of the Constitution. Applying the Doctrine, the onus lies on the government to protect its citizens by diverting all its efforts in safeguarding public health and order at this point.
DISSONANCE BETWEEN QUASI-SOVEREIGN INTERESTS
The primary prerequisite for a State to maintain the role of Parens Patriae is to secure its quasi-sovereign interest. ‘Quasi-sovereign interests’ consist of a set of interests that the State has to fulfill in the well-being of its populace[vi], which include protecting the physical welfare of citizens, ensuring the well-being of the economy and maintaining a State’s rightful position in the system. As Parens Patriae, the State is bound to strike a balance between the three quasi-sovereign interests – a goal which the Indian government has failed to achieve in this pandemic.
The welfare state is committed to effectuate its functions in consonance with a realm of certain legal theories and maxims by which it is morally bound. One of these is the Latin maxim salus populi suprema lex which promulgates regarding public welfare as the highest law. Another closely related maxim is salus reipublicae suprema lex, which means that the safety of the State is the supreme law. For the State to effectively discharge its quasi-sovereign functions, it is necessary for the former and latter to harmoniously coexist.[vii] Maintaining an equilibrium between these functions is subject to multiple factors and an almost unrealisable goal.
There has been a rigorous discord between the fiscal interest and the salubrity of the people in times of COVID-19. Deciding whether to impose a strict lockdown to prevent the spread of the virus or easing off preventive measures to kick start the economy is a good example of this incongruity. These two aspects act as a sensitive beam in the State’s decision-making, with a desperate need of resurrecting the crashing economy on one end and preserving the health and wellbeing of the citizenry on the other end. The repugnancy between these two functions is a grey area which has still not been explored in the Indian laws. This lacuna needs to be deliberated upon and the legislature must find a way to strike a balance between these quasi-sovereign functions at the earliest.
The maxim salus reipublicae suprema lex has been interpreted to include within its scope matters of preventive detention, terrorism etc. However, securing the health of the citizens is the most cardinal form of safety which the State is obligated to provide under Article 21 and under Article 47 which directs the state to do everything in its power to raise the standard of living of people and to improve public health. The right to health has been recognized by the Hon’ble Supreme Court time and again as an integral part of the right to life and personal liberty enshrined under Article 21. The right to health subsumed within its ambit the right of safety from the risk of inadvertent spread of COVID-19. Hence, it is the indubitable accountability of the State to divert all its resources in ameliorating the healthcare facilities and imposing suitable preventive measures to protect the people from COVID-19.
CONCLUSION
Disasters are humankind’s most feared challenges. Irrespective of how qui vive the State is, no amount of preparedness can determine the extent of damage a catastrophe can cause. Holding the State accountable for combating a disaster or averting it is a utopian expectation. However, as its role of Parens Patriae, the State is bound to act as a bulwark and pledge its resources and assistance to alleviate the effects of a disaster via affirmative action. Therefore, there is a certain reasonable expectation envisaged under the Doctrine and Constitutional sanction which not only comes to the rescue of the people who are affected by the disaster but also protects them from the negligent acts of the State during the disaster.
Owing to its prodigious nature, COVID-19 has affected all spheres of State mechanism, compelling the government to take extreme measures to mitigate the impact of the virus. However, the government had the golden opportunity to initiate a plan of action well in advance since the pandemic had occurred in other parts of the world before it struck India. Moreover, since the State implemented extremely rigid preventive measures at a short notice, it barely gave any opportunity for migrants, citizens, businesses, the medical sector or enforcement authorities to digest the blow and prepare for what was coming. The State has blatantly sidestepped its duties as a Parens Patriae since neither the economy nor the health of the citizens is free of risk today.
[i] Bipinchandra J. Diwan & Ors. v. State of Gujarat & Ors, AIR 2002 Guj 99.
[ii] A term applied to an individual who lacks the legal capacity to act on his or her own behalf, such as an infant, idiot or an insane person.
[iii] Bipinchandra J. Diwan & Ors. v. State of Gujarat & Ors, AIR 2002 Guj 99.
[iv] Charan Lal Sahu v. Union of India, AIR 1990 SC 1480.
[v] Six-Point Set of criteria laid down by WHO before lifting the lockdown restrictions and the Risk Assessment Test.
[vi] Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982).
[vii] G. Sundarrajan v. Union of India, (2013) 6 SCC 620 & Prithipal Singh and Ors. v. State of Punjab and Anr. (2012) 1 SCC 10.
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